Refusing to provide breath, blood or urine samples

By Miriam Yosowich

If you are stopped by police and they have reasonable suspicion that you may have been drinking or taking drugs before driving or being in care and control of a vehicle, you may find yourself in legal trouble.

S. 254 of the Criminal Act of Canada gives police the power to require or demand breath, blood or urine samples if officers have grounds to believe the person is intoxicated and operated or was in care or control of a vehicle in the last three hours and committed an offence which contravened s. 253 of the Criminal Code.

S. 254 (3.1) gives a police officer the right to an evaluation of the person who is reasonably suspected of being intoxicated. S. 254 (3.4) (a) and (b) allow officers to demand urine and blood samples, if after having conducted the evaluation of the person (usually a breathalyzer and/or a roadside test) the officer has reasonable grounds to believe the person has alcohol or drugs, or a combination of the two in their system.

When it comes to a blood sample though, given that extracting blood is invasive, the demand has to be under the conditions of:

Due to circumstances, it’s impractical for you to give a breath sample; or

You are physically unable to give a breath sample.

Another condition of taking a blood sample is that a qualified technician or a qualified medical practitioner has to take the blood sample, so they can make sure that your health and safety will not be at risk.

You have the right to consult with a lawyer before taking a formal breathalyzer test at the police station and before a blood or urine test. However, you can’t really refuse a roadside breathalyzer test – nor consult with a lawyer if it’s a roadside test, if the police have reasonable suspicion that you were intoxicated in the last three hours while driving or having control of a vehicle.

Refusal to provide a sample

Though a police officer has to have reasonable grounds in order to ask for a breathalyzer, blood and/or urine sample (which is that he or she suspects you have committed a drunk driving offence within the last three hours), if the officer has those grounds, then a person is required to comply with the officer’s demand.

Refusal to comply with a police officer’s demand for a sample can result in with being charged with the offence of failure or refusal to comply with demand.

The penalties for refusing a sample without having a reasonable excuse are pretty steep. You are basically facing the same penalty had you taken but failed to take the requested tests.

The penalties are outlined in s. 255(1) and state that regardless of being whether you’ve been charged with a summary or indictable offence the minimum punishments are:

For a first offence, a fine of not less than $1,000,

For a second offence, to imprisonment for not less than 30 days, and

For each subsequent offence, to imprisonment for not less than 120 days.

In addition, depending on the province or territory in which you reside, it’s very likely you will also be given a driving prohibition for a certain amount of time.

If you have been detained or arrested by police in regards to requested samples and/or refusing to provide samples, you should contact a lawyer as soon as possible.